Tuesday, 13 May 2014

Assessing the new EU Council Guidelines on Freedom of Expression - online and offline

Professor Lorna Woods, University of Essex; co-author, Steiner and Woods, EU Law

Yesterday the Council of the
European Union adopted guidelines on freedom of expression. As these guidelines were adopted by the
Foreign Affairs Council, it is not surprising that they are aimed at
implementation within the Union’s Common Foreign and Security Policy, like the ten previous guidelines on issues such as torture, the death penalty and human rights defenders. So, while the guidelines are ‘guided’ by the
EU Charter, as well as any relevant EU treaty provisions, the principal sources
referred to are the provisions in the United Nations’ International Covenant on
Civil and Political Rights (ICCPR) as well as the UN Human Rights Committee’s
General Comment 34 on Freedom of Expression.
The list of sources contained in the Annex is far wider, however. It is
also worthwhile noting that there is some discrepancy between what the EU asks
of others – especially would be Member States via the Copenhagen criteria applied to planned accession candidates – and
the recent practice of its own Member States (whether that be Hungary or the
United Kingdom).

The Guidelines follow what
might be termed a standard human rights approach to freedom of expression: that
is, that freedom of expression should be interpreted broadly and exceptions
narrowly (referring to the list of possible exceptions set out in Article 19(3)
ICCPR as well as Article 20(2) ICCPR, on hate speech) and subject to the tests
of legality, necessity and proportionality.
In explaining the significance of freedom of speech, the Guidelines
refer to the significance of that freedom (especially that of the media) in
democracy, but they also refer to the human element: that speech is important
for self-fulfilment and autonomy, including the development of one’s identity
in society, and not just instrumentally in the search for ‘truth’ or the
‘right’ political answer – important though that may be. Having said that, much
of the specific points relate to the role of journalism and the media, with the
underpinning assumptions about the role of the media as watchdog of those in
power.

The guidelines also note the
horizontal nature of freedom of expression – especially relevant in the context
of the Internet and social media, when expression is not just about public
institutions and the media speaking to a passive audience (which was the model
for much of the previous case law) but also the right of individuals to speak
to one another and to receive each others’ views. This point has been given a
higher profile in the approach of the Inter-American Court of Human Rights than
traditionally has been the case in relation to Article 10 ECHR and Article 19
ICCPR. Despite this emphasis, there is recognition of the both the relationship
between privacy and freedom of expression and the tension between them.
Interestingly, in this document the former aspect – through consideration of
the impact of surveillance on speech - may have a higher profile than the
latter.

The guidelines identify some
areas of priority action, and in some respects these areas of action are no
surprise, starting with the need to end the impunity of those who take action against
individuals for exercising their right of freedom of expression – notably
journalists and media workers. In addition to condemning such actions, the EU
will apparently call on the relevant state actors to take action against such
threats of violence as well as violence itself.
If the EU does take action, it may provide incentives for some governments
to take note of the UN General Assembly resolution on the subject, as well as
the Action Plan to end impunity. In the tools section, the guidelines provide:

Abusive
restrictions on freedom of expression and violence against journalists and
other media actors should be taken into account by the EU when deciding on
possible suspension of cooperation, notably as regards financial assistance.

This is a proposal that some
involved in the campaign against impunity have been suggesting for some
time. How it works in practice remains
to be seen.

The Guidelines identify the
need to ensure that laws are not used to suppress freedom of expression, and
that media regulation is appropriate to ensuring freedom of expression. Note
that some of the points in this section go further than the regulatory position
required of the Member States of the EU, specifically as regard the
independence of regulatory bodies. While the EU’s communications package and
the data protection regime expect that there be independent regulatory bodies,
there is no such provision in the Audiovisual Media Services Directive, and
there is little transparency of media ownership – both to be encouraged according
to these guidelines.

The Guidelines also note the
importance of freedom of expression in cyberspace, and in particular focus on
the need to ensure non –discriminatory access to the Internet – though there is
less detail on what this actually means beyond support for the multistakeholder
model of Internet Governance – as set out by EU strategies, rather than those
identified in the Internet Governance Forum or Netmundial, although engagement
with these is envisaged in the tools for action. The Guidelines do note the
role of private companies, and set out best practice guidelines reflecting back
the UN Guiding Principles on Business and Human Rights, as understood through
the EU guidance note for ICT companies on business and human rights.

The first action point, however, is
‘action at the international level to develop best practices and respect for
human rights with regard to the export of technologies that could be used for
surveillance or censorship by authoritarian regimes’. The position as regards the United States is
not addressed. The significance of the need to protect against excessive
surveillance is, however, repeated and its adverse effect of freedom of
expression noted. Thus the guidelines
specify that EU action will include the promotion of ‘the exchange of good practices to ensure that the legislation and
procedures of States regarding the surveillance of communications and the
interception and collection of personal data are based on the rule of law,
subject to independent, effective and domestic oversight mechanisms and uphold
obligations under international human rights law, including the principles of proportionality and necessity’, something
which some Member States may need to think about. The call to comply with Council Common Position 2008/944/CFSP on exports of specified military technology does not add
much, but the statement that ‘the EU will ensure a structured and consistent
approach to export controls of certain sensitive information and ICT items’ is
potentially far reaching, though what is envisaged by this statement is
unclear. Is there a concern about mobile technology that has had back doors
engineered into it (at the request of certain Western governments) for example?
The next sentence refers however to specific surveillance/censorship
technology, suggesting a far narrower field of concern.

Finally, the Guidelines contain
plans for evaluation, specifically envisaging a report in three years’ time. While
some aspects may show signs of fitting in with global concerns – such as the
concerns about the violence against journalists now high on the UN’s agenda or
the global revulsion at mass surveillance, it remains hard for the EU
successfully to preach certain behaviours when its own Member States have at
best a patchy record in these areas.